Simpson v. Wicker

• Decision Date: 09 June 1904
• Parties: SIMPSON . v. WICKER.
• Court: Georgia Supreme Court

47 S.E. 965
120 Ga. 418

SIMPSON .
v.
WICKER.

Supreme Court of Georgia.

June 9, 1904.

COSTS — AFFIDAVIT FORMA PAUPERIS—NEW TRIAL—GROUNDS—LIMITATIONS.

1. Under the act approved December 20, 1899 (Acts 1899, p. 79), an affidavit in forma pauperis before a foreign notary, with his seal attached, is receivable in the courts of this state, and sufficient to prevent a dismissal of a bill of exceptions for failure to pay costs.

2. The refusal to dismiss a ease because of the failure of the plaintiff to attach a bill of particulars does not afford ground for the grant of a new trial. Civ. Code 1895, §§ 4963, 5642.

3. The evidence was conflicting. There was testimony that at the time the services were rendered the defendant was a resident of this state, and shortly afterwards removed therefrom, so that the claim was not barred by the statute. Civ. Code 1895, § 3783.

(Syllabus by the Court.)

Error from Superior Court, Gordon County; A. W. Fife, Judge.

Action by R. H. Wicker against J. H. Simpson. Judgment for plaintiff, and defendant brings error. Affirmed.

Dr. R. H. Wicker brought suit by attachment against Mrs. J. H. Simpson. The defendant filed a plea of the statute of limitations; that she was a married woman, and had never undertaken to pay the debt sued on, which was for medical services rendered to herself. She further pleaded that the debt had been paid by her husband. There was evidence that she and her husband lived in Alabama; that she returned to Georgia, and while ill sent for the plaintiff, agreeing to pay him out of her separate estate, and stating at the same time that she had returned to Georgia to live. A few months thereafter she returned to Alabama, and had been living there five or six years before the suit was brought. The plaintiff testified that he had sent her his bill; that she replied, admitting its correctness and her responsibility therefor, and promised payment. There was practically no dispute as to the correctness of the account, but much evidence for the defendant to the effect that she had never moved back to Georgia, and had never promised to pay the debt out of her separate estate, and had never treated the claim as due by herself. The jury found for the plaintiff. The defendant moved for a new trial on the general grounds, and because the court erred in not dismissing the attachment suit upon the ground that plaintiff did not attach a bill of particulars, and because the court allowed the testimony of the' plaintiff as to the contents of a lost letter from defendant, admitting the debt and promising to pay the same, on the ground that the suit was not based thereon. On the call of the case here, attention was called to the fact that the affidavit in forma pauperis had been made before a notary in the state of Alabama, and, while his seal was attached, there was nothing to show that under the laws of Alabama a...